1
The law and the business of criminal record
expungement in South Africa
By
Lukas Muntingh
Research report no. 18
2
© Community Law Centre, 2011
This publication was funded by the Open Society Foundation –South Africa (OSF-SA).
Copyright in this article is vested with the Community Law Centre, University of Western Cape. No part of
this article may be reproduced in whole or in part without the express permission, in writing, of the Community
Law Centre.
It should be noted that the content and/or any opinions expressed in this article are that of the author and not
necessarily of CLC or CSPRI or any funder or sponsor of the aforementioned.
Civil Society Prison Reform Initiative (CSPRI)
c/o Community Law Centre
University of the Western Cape
Private Bag X17
7535
SOUTH AFRICA
The aim of CSPRI is to improve the human rights of prisoners through research-based lobbying and advocacy
and collaborative efforts with civil society structures. The key areas that CSPRI examines are developing and
strengthening the capacity of civil society and civilian institutions related to corrections; promoting improved
prison governance; promoting the greater use of non-custodial sentencing as a mechanism for reducing
overcrowding in prisons; and reducing the rate of recidivism through improved reintegration programmes.
CSPRI supports these objectives by undertaking independent critical research; raising awareness of decision
makers and the public; disseminating information and capacity building.
LM Muntingh
3
Contents 1. Introduction ........................................................................................................................................ 4
2. The legal framework ........................................................................................................................... 6
2.1 Members of Parliament and the Constitution .............................................................................. 7
2.2 Criminal Procedure Act ................................................................................................................. 8
2.2.1 The ‘falling away’ provision.................................................................................................... 8
2.2.2. Expungement of ordinary criminal convictions .................................................................... 9
2.2.3 Apartheid era crimes ............................................................................................................ 10
2.2.4 The procedure for having a record expunged ..................................................................... 10
2.3 The Criminal Law (Sexual Offences and Related Matters) Amendment Act and the Children’s
Act ..................................................................................................................................................... 11
2.3.1 Procedure for removal from the Sex Offenders Register .................................................... 13
2.3.2 Procedure for removal from Part B of the National Child Protection Register ................... 16
2.3.3 Expungement and the registers ........................................................................................... 17
2.4 Child Justice Act .......................................................................................................................... 18
2.5 Overview of the legislative provisions ........................................................................................ 21
3. The practice ....................................................................................................................................... 23
3.1 Dept of Justice and Constitutional Development ....................................................................... 23
3.2 The private sector and criminal records ..................................................................................... 23
4. Conclusions and recommendations .................................................................................................. 26
Appendix 1 ............................................................................................................................................ 30
4
The law and the business of criminal record
expungement in South Africa
By
Lukas Muntingh1
1. Introduction
Having a criminal record can have serious implications for an individual’s prospects of finding
employment2 and much research has been done especially in the United States with its draconian laws
excluding felons from a variety of resources, rights and types of employment.3 In South Africa the
issue of criminal records was recently brought to the fore by an amendment to the Criminal Procedure
Act (51 of 1977) through the Criminal Procedure Amendment Act (65 of 2008) which came into force
on 6 May 2009.4 The amendment to section 271 created for the first time a statutory mechanism and
clear procedure for the expungement of certain criminal convictions, including crimes created by
apartheid era legislation. Prior to this no mechanism existed to expunge criminal convictions, save
through a presidential pardon as provided for in the 1983 and 1996 Constitutions.5
While the Criminal Procedure Amendment Act (65 of 2008) created the mechanism for the
expungement of certain criminal convictions, this has not been the only development on this front in
recent years. What has emerged from various legislative interventions is a complex and often
confusing set of yardsticks dealing with criminal records and their expungement. One is offence and
age specific (i.e. the Child Justice Act 75 of 2008), whereas the second gives no recognition to the
offence but only the sentence imposed and the time lapse from the date of conviction (i.e. Criminal
1 Project Coordinator, Civil Society Prison Reform Initiative, Community Law Centre, University of the
Western Cape. 2 See Muntingh L. (2010) Ex-prisoners’ views on imprisonment and re-entry, CSPRI Research Report,
Bellville: Community Law Centre, p. 25 “A participant from one of the Cape Town groups explained that he
was able to find employment but never disclosed his criminal record or time spent in prison to his employer: I
work at [name of large retail chain] but I keep quiet about prison; maybe they will find out. Maybe they know
and will use it against me later. A participant who used his time in prison well explained the application and
interview processes as follows: I went to school in prison and achieved a lot. I made many job applications but I
can’t say anything about a criminal record in these applications. It is only when you get to the interview that
you try and convince them that you are able to do the job but they don’t want to listen. As soon as the [criminal]
record comes out, you know it is over.” 3 Olivares, K and Burton, V (1996) The collateral consequences of a felony conviction: a national study of state
legal codes 10 years later, Federal Probation; Vol. 60 Issue 3, p10. 4 Proc. R36/GG32205/20090506.
5 Section 6(3)(d) Act 110 of 1983 and Section 84(j) Act 108 of 1996
5
Procedure Act 51 of 1977), and the third yardstick uses the sentence and the time lapse following the
completion of the sentence (the Final Constitution, 1996 with reference to Members of Parliament). In
addition to criminal convictions, there has been the establishment of three registers which are also
relevant to the debate. The Sex Offenders Register established under the Criminal Law (Sexual
Offences and Related Matters) Amendment Act (32 of 2007) and Part B of the National Child
Protection Register in the Children’s Act (38 of 2005) are both linked to criminal convictions and
such convictions cannot be expunged unless the name of the offender has not first been removed from
the relevant register. Lastly, the Child Justice Act (75 of 2008) created, oxymoronically, a register of
children who have been diverted from the criminal justice system. While the diversion register is not
specifically mentioned in relation to sentencing, it may be consulted in relation to a range of functions
set out in several chapters of the Child Justice Act.
On a broader level, the question must be asked what purpose(s) the retention of criminal records aims
to serve. Fundamental to the debate is the acknowledgment that having a criminal record can be
severely detrimental to a person’s access to employment and social status in general. Moreover, the
effect of a criminal record is that the punishment for the crime committed lasts much longer than the
sentence imposed by the court. 6
It is this lasting effect that ex-offenders and ex-prisoners often
experience as being exclusionary and marginalising. The effect of a criminal record is that it becomes
a debt to society that cannot be re-paid.7 It is this debt that Van Zyl Smit calls a ‘civil disability’ –
individuals are excluded from certain civil functions and types of employment because at some time
in the past they had committed and were convicted of a crime.8 In the American literature this is also
referred to as ‘collateral disabilities’.9 As Van Zyl Smit observed in respect of prisoners in 2003:
‘There has been no systematic effort to think through what the fundamental change to the
constitutional order should mean for the legal disabilities imposed on former prisoners. Current
disabilities are something of a neglected ragbag, typically relegated to a passing paragraph in the
major legal textbooks dealing with their legal status generally.’
Admittedly, criminal records also serve a protective function; they signify to society that a specific
person is dishonest or poses a danger to children, or is violent. The protective value of criminal
records in such instances have now also found expression in recently passed legislation providing for
a sex offenders’ register and a register of persons convicted for crimes against children. Criminal
records are also used by courts when imposing sentences to assess the criminal history of the offender
6 Naude B (2002) Legislative expungement of criminal records, SA Journal of Criminal Justice, Vol 15, p. 287.
7 Love MC (2002) ‘Starting over with a clean slate – in praise of a forgotten section of the model penal code’
Fordham Urban Law Journal, Vol. 30 p. 1705 8 Van Zyl Smit D (2003) ‘Civil disabilities of former prisoners in a constitutional democracy: building on the
South African experience’ Acta Juridica, pp. 221-237. 9 Love MC (2002) ‘Starting over with a clean slate – in praise of a forgotten section of the model penal code’
Fordham Urban Law Journal, Vol. 30 p. 1714
6
and previous convictions would normally count against the offender and result in a more severe
penalty. There are, however, also different schools of thought on this issue.10
The retention or expungement of criminal records then centres on two issues: on the one hand, the
duty to promote safety in society and protect citizens from dangerous and dishonest individuals and,
on the other hand, the right to equality11
and the constitutional duty on the state ‘to free the potential
of each person’.12
Van Zyl Smit argues that discriminating against former prisoners based on their
criminal pasts is not only counter-productive by undermining social reintegration, but that the state
has a positive duty to fulfil in respect of social reintegration and to render support to former
prisoners.13
Making information available to third parties about individuals’ criminal histories would
thus be to undermine this positive obligation.
2. The legal framework
The record of a criminal conviction is referred to and used in a number of different statutes and a
selection will be described here. As will be shown, the same standards and criteria are not applied
when reference is made to a previous criminal conviction and there are notable differences between
the Constitution (with reference to Members of Parliament), the Criminal Procedure Act, the
Children’s Act (with reference to the Child Protection Register), the Sexual Offences Act (with
reference to the Sex Offender Register), and the Child Justice Act. These differences have, in all
likelihood, their origin in the particular context and history that shaped the particular statute. The
expungement of a criminal conviction is provided for in the Criminal Procedure Act (as amended by
Act 65 of 2008) and the Child Justice Act, and the procedures are described below.
10
Three approaches are discernable: (1) Flat rate sentencing only acknowledges the crime that is being punished
now as the punishments for previous crimes have already been executed and it would be unfair to punish again
for a crime that was already punished. (2) Cumulative sentencing argues that for each crime the punishment
should be more severe in order to build on the deterrent value of the punishment. (3) The progressive loss of
mitigation works from an upper ceiling downwards, giving maximum benefit to the first offender and least to
the repeat offender up to him/her receiving he maxim specified penalty. [Ashworth A (2005) Sentencing and
Criminal Justice, Cambridge University Press, pp. 184-187] 11
Constitution s 7 12
Constitution Preamble 13
Van Zyl Smit D (2003) ‘Civil disabilities of former prisoners in a constitutional democracy: building on the
South African experience’ Acta Juridica, pp. 221-237.
7
2.1 Members of Parliament and the Constitution
Section 47 of the Constitution sets the criteria for membership of Parliament and section 47(1)(e)
places a restriction in respect of persons convicted of criminal offences: “anyone who, after this
section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment
without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting
the offence would have been an offence in the Republic, but no one may be regarded as having been
sentenced until an appeal against the conviction or sentence has been determined, or until the time for
an appeal has expired. A disqualification under this paragraph ends five years after the sentence has
been completed.”
The first issue here is that the requirement is not retrospective; in line with section 35(3)(l) of the
Constitution. The sentence imposed must be more than 12 months imprisonment without the option of
a fine. This raises the possibility that a Member of Parliament (MP) may in fact be a serving member
whilst imprisoned if sentenced to less than 12 months. Even when an MP has thus been sentenced, but
appeals the conviction and/or sentence, he or she would remain an MP at least until an appeal against
the conviction or sentence has been finalised or the time for the appeal has expired.14
An important
requirement here is that the exclusion from being an MP is that the disqualification remains in force
for five years after the completion of the sentence. The completion of the sentence is understood to
mean the full sentence and not only the part served in prison if released on, for example, parole or if
sentenced under section 276(1)(h) or 276(1)(i) or conversion of the sentence to correctional
supervision. The same would apply if part of the sentence was suspended for a period.
The key issues emerging here are, firstly, that the exclusion from membership of Parliament is
sentence based (in excess of 12 months’ imprisonment without the option of a fine) and not offence
based. Secondly, the exclusion remains in force for a period of five years after the completion of the
sentence, thus clearly extending the punishment imposed by the court. Consequently, a person
sentenced to life imprisonment even if released on parole will never be able to become a Member of
Parliament as he remains on parole for the rest of his life and the sentence is completed only upon
death.
14
Depending on which the trial court is, the period is either 14 or 15 days. See Criminal Procedure Act section
309B and 316(1) and Rule 49(1)(a) and (b) of the Rules of the Supreme Court.
8
2.2 Criminal Procedure Act
2.2.1 The ‘falling away’ provision
Section 271 A of the Criminal Procedure Act states that certain convictions ‘fall away’ after 10 years
where a court has convicted a person of:
• Any offence where a term of imprisonment exceeding 6 months without the option of a fine
may be imposed, but the passing of sentence was postponed in terms of section 297(1)(a)15
and the court discharged that person in terms of section 297(2)16
without passing sentence or
has not called that person to appear before the court in terms of section 297(3).17
• Any other offence for which a sentence not exceeding six months without the option of a fine
may be imposed
and that person has not, during the period of the postponement, been convicted of an offence for
which a sentence of imprisonment exceeding six months without the option of a fine may be imposed.
For the layperson there may be some uncertainty as to what ‘fall away’ exactly means and whether an
application for expungement (as discussed below) still needs to be made. According to Terblanche
‘falling away’ means that such convictions cannot not be taken into account for the purposes of
sentencing at a later stage.18
However, the same author notes Van Heerden JA commenting that such
convictions should in fact be removed from the SAP 69 (the record of previous convictions).19
This
implies that, according to Van Heerden JA, the fall away provision is not sufficient to give the
offender a true ‘clean slate’ again as the court (and third parties) still have access to the record of
criminal convictions, even if these occurred more than ten years ago. Therefore, it must be understood
that the offender who has been convicted and sentenced in a manner that meets the requirements of
section 271A and that a period of ten years has lapsed, must not assume that the conviction has been
removed from the criminal records data base; the record still exists but it may not be taken into
account if there is a further conviction and sentence must be passed.
15
The passing of sentence is postponed for a period not exceeding 5 years and the person is released on one or
more conditions that may include compensation, rendering a service to the aggrieved person some benefit or
service in lieu of compensation or pecuniary loss; the performance of community service; placement under
correctional supervision; submission to instruction or treatment; supervision by a probation officer; the
compulsory attendance at a specified centre; good conduct, any other matter or unconditionally. 16
A court has postponed the passing of sentence under section 297(1)(a) and the court (same or differently
constituted) is satisfied that the person is satisfied that there was compliance with the conditions of suspension,
the court shall discharge his or her without passing sentence and such a discharge shall have the effect of an
acquittal, except that the conviction shall be recorded as a previous conviction. 17
If a court has unconditionally postponed the passing of sentence in terms of section 297(1)(a)(ii) and the
person has not by the end of the period of postponement been called to appear before the court, such person
shall be deemed to have been discharged with a caution under section 297(1)(c). 18
Terblanche S (2007) Guide to sentencing in South Africa (2nd
ed) Durban: Lexis Nexis, p. 84. 19
Terblanche S p. 84
9
A self-contradictory provision is also found in section 297(2) of the Criminal Procedure Act providing
for an acquittal yet it is recorded as a conviction and would thus appear on the criminal record of the
person.20
It should similarly be noted and as will be elaborated on further below, that the record of
criminal convictions is not only used by the courts for purposes of sentencing but that it is also used
by, for example, prospective employers.
2.2.2. Expungement of ordinary criminal convictions
Following the amendment, Section 271B provides the list of sentences in respect of which an
application may be made for the expungement of the record after a period of ten years has lapsed after
the date of conviction and the person has not been sentenced to a period of imprisonment without the
option of a fine. A person convicted and sentenced as set out below may apply for the expungement of
their criminal record following the procedure described below. Persons who had received the
following sentences are eligible:
• The postponement of the passing of sentence in terms of section 297(1)(a) where the persons
was discharged in terms of 297(2) or the person was not called back to appear before the court
in terms of section 297(3)
• A sentence discharging the person with a caution or reprimand provided for in section
297(1)(c)
• A fine only, but not exceeding R20 000
• A sentence of corporal punishment before corporal punishment was declared unconstitutional
• A sentence of imprisonment with the option of a fine but not exceeding R20 000
• Any sentence of imprisonment that was wholly suspended
• Correctional supervision as provided for in section 276(1)(h) or (i)21
• Periodical imprisonment.
Persons whose names have been included in the National Register of Sex Offenders22
and/or the
National Child Protection Register23
as a result of a conviction do not qualify to have the criminal
20
297(2) Where a court has under paragraph (a) (i) of subsection (1) postponed the passing of sentence and the
court, whether differently constituted or not, is at the expiration of the relevant period satisfied that the person
concerned has observed the conditions imposed under that paragraph, the court shall discharge him without
passing sentence, and such discharge shall have the effect of an acquittal, except that the conviction shall be
recorded as a previous conviction. 21
Section 276(1)(h) provides for correctional supervision without a custodial component and section 276(1)(i)
provides for a sentence of imprisonment from which the person can be placed under correctional supervision at
the discretion of the National Commissioner of Correctional Services or the Correctional Supervision and Parole
Board. 22
Section 50, Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007. 23
Section 120(1)(b), Children’s Act 38 of 2005
10
record in question expunged unless their names have been removed from the register that they appear
on. The requirements in respect of these registers are further discussed below.
2.2.3 Apartheid era crimes
Apartheid era legislation created a plethora of apartheid related crimes and these were recorded as
criminal convictions for people convicted accordingly. Section 271C lists the relevant apartheid era
laws in respect of which expungement are enabled.24
A key difference here, compared to section
271B, is that the expungement is automatic in the sense that there are no additional requirements, such
as the submission of an application, the issuance of a certificate of expungement and so forth.
Moreover, the duty rests with the SAPS Criminal Records Centre to expunge such records without an
application for expungement being made.
However, if the record of a person convicted of apartheid era crimes was not automatically expunged
as required by section 271C(1), the record must be expunged upon the written request of the person
subject to the procedure set out in section 271C(3) and section 271D.25
In addition to the specific
apartheid era laws listed in section 271C (1), provision is also made in section 271C(2) for any other
act of Parliament, ordinance of a provincial council, municipal by-law, proclamation, decree or any
other enactment having the force of law, enacted in South Africa, the TBVC states26
and self
governing territories “which created offences that were based on race or which created offences,
which would not have been considered to be offences in an open and democratic society based on
human dignity, equality and freedom, under the constitutional dispensation after 27 April 1994”.27
2.2.4 The procedure for having a record expunged
24
A contravention of section 1 of the Black Land Act, 1913 (Act No. 27 of 1913); section 12 of the
Development Trust and Land Act, 1936 (Act No. 18 of 1936); section 5(1), read with section 5(2), or section 6,
read with section 6(2), of the Blacks (Urban Areas) Consolidation Act, 1945 (Act No. 25 of 1945); section 8(1),
read with section 8(3), of the Coloured Persons Settlement Act, 1946 (Act No. 7 of 1946); section 2 or 4 of the
Prohibition of Mixed Marriages Act, 1949 (Act No. 55 of 1949); section 11 of the Internal Security Act, 1950
(Act No. 44 of 1950); section 10(6) and (7), 11(4), 14, 15, 16, 20(1), 28(7), 29(1) or 30 of the Black Building
Workers Act, 1951 (Act No. 27 of 1951); section 15 of the Blacks (Abolition of Passes and Co-ordination of
Documents) Act, 1952 (Act No. 67 of 1952); section 2 of the Criminal Law Amendment Act, 1953 (Act No. 8
of 1953); section 2(2) of the Reservation of Separate Amenities Act, 1953 (Act No. 49 of 1953); section 16 of
the Sexual Offences Act, 1957 (Act No. 23 of 1957); section 46 of the Group Areas Act, 1966 (Act No. 36 of
1966); section 2 or 3 of the Terrorism Act, 1967 (Act No. 83 of 1967); section 2 read with section 4(1), of the
Prohibition of Foreign Financing of Political Parties Act, 1968 (Act No. 51 of 1968). 25
Section 271C(2)(b) 26
The former homelands of Transkei, Bophuthatswana, Venda and Ciskei 27
Section 271C(2)(a)
11
The procedure for applying for an expungement of a criminal record is set out in section 271D of the
Criminal Procedure Act and the regulations thereto.28
Excluding apartheid era offences, the first step
in the application for expungement is to obtain a ‘clearance certificate’ showing that a period of ten
years has lapsed after the conviction(s) and sentencing. The clearance certificate can be applied for at
a police station29
and a fee of R59.00 is payable upon application for a clearance certificate.
Applications in respect of section 271B must use Form A. Applications in respect of section 271C
(2)(a) (offences based on race) must use Form B. Applications in respect of section 271C(2)(a)
(offences listed under apartheid era laws) must use Form C. Form C applies to those instances where
the records should have been automatically expunged, but this did not happen. In respect of race-
based offences and specific apartheid era law, there is no need to submit the SAPS certificate of
clearance.
The full applications must be submitted to the Director General: Justice and Constitutional
Development who, if the applicant meets the criteria for expungement, issue a certificate of
expungement; Form D in the Regulations. The certificate of expungement must then be submitted by
the Director General: Justice and Constitutional Development to the head of the Criminal Records
Centre of SAPS.
Upon the receipt of the certificate of expungement, the Head of the Criminal Records Centre of SAPS
(or such delegated official) must expunge the record as indicated. The Head of the Criminal Records
Centre of SAPS will, however, not automatically inform the applicant of the expungement and will
only do so upon the written request of the applicant.
In the event that there is a dispute or uncertainty whether an offence meets the requirements in section
271C(1) or section 271C(2), the matter must be referred to the Minister of Justice and Constitutional
Development. If the Minister decides that it does meet the requirements in section 271C(1) or section
271C(2), the Minister may issue a certificate of expungement (Form E). It should be noted that in
respect of applications made under section 271B(1), there is no dispute resolution mechanism.
2.3 The Criminal Law (Sexual Offences and Related Matters) Amendment
Act and the Children’s Act
28
Criminal Procedure Act Regulations, R. 513, No. 32205, 6 May 2009. 29
It appears that not all police stations are capable of handling these applications and practice indicates that only
police stations with a detective branch can process the application for a clearance certificate.
12
The Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007) and the
Children’s Act (38 of 2005) created two registers that have an important bearing on the expungement
of criminal records. If a person has been convicted of a sexual offence against a child or person who is
mentally disabled, and his or her name has been included in the National Register for Sex Offenders,
the person’s criminal record may not be expunged unless his or her name has been removed from the
National Register. Similarly, a person whose name has been included in Part B of the National Child
Protection Register as a result of a conviction as provided for in section 120(1)(b) of the Children’s
Act (38 of 2005), must first have his or her name removed from the register before an application for
expungement can be made. It should be noted here that while the Criminal Procedure Act refers, in
section271B(b)(ii), to a conviction as the requirement for a criminal record, the Children’s Act
provides for a far lower bar than a conviction for inclusion on Part B of the National Child Protection
Register. Section 120(1) of the Children’s Act (38 of 2005) provides that a finding that a person is
unsuitable to work with children can be made by a children’s court, any other court in any criminal or
civil proceedings, or any forum established or recognised by law in any disciplinary proceedings.30
Inclusion in the National Register for Sex Offenders casts a wide net and not only cover convictions
following the coming into operation of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act (32 of 2007), but also covers all previous convictions for sexual offences against
children and persons with mental disabilities, regardless of whether a custodial or non-custodial
sentence was imposed.31
The implications of this retrospective mechanism are considerable, not only
from a practical and logistical point of view, but also from a legal point of view. For example, a
person convicted prior to 1994 of a sexual offence against a child or mentally disabled person did not
enjoy the same constitutional and other procedural protections than a post-1994 conviction. If the
person was convicted based on a confession obtained through coercion, if not torture, the process by
which the conviction was obtained would be flawed under the current constitutional order.32
Prior to
1994 the courts were far less discerning as to where evidence came from and “generally admitted all
evidence, irrespective of how it was obtained, if it was relevant.”33
This then presents a dilemma as it
applies one standard to all, but ignoring that the ‘rules of the game’ have changed substantially. A
further element is that a person who has been convicted pre-1994 and who has completed the sentence
30
See Schedule 8 of the Labour Relations Act (66 of 1995). This would therefore cover any legitimate
disciplinary procedure established and used in the work place. 31
Section 50(1)(a)(iii-iv) Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007) 32
The point of a flawed process is well made in Mthembu v S “To admit Ramseroop’s testimony regarding the
Hilux and metal box would require us to shut our eyes to the manner in which the police obtained this
information from him. More seriously, it is tantamount to involving the judicial process in ‘moral defilement’.
This ‘would compromise the integrity of the judicial process (and) dishonour the administration of justice’. In
the long term, the admission of torture induced evidence can only have a corrosive effect on the criminal justice
system. The public interest, in my view, demands its exclusion, irrespective of whether such evidence has an
impact on the fairness of the trial.” Para 36. 33
Mthembu v S (64/2007) [2008] ZASCA 51 (10 April 2008) para 22, S v Pillay 2004 (2) SACR 419 (SCA)
para 6.
13
imposed and who has no further convictions, will now be placed on the National Register for Sex
Offenders without being informed of this prior to inclusion and given the opportunity to make
representation to be excluded based on the criteria for removal as set out in the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, as discussed below.
Part B of the National Child Protection Register also has a retrospective mechanism but this is limited
to persons convicted of murder, attempted murder, rape, indecent assault or assault with the intent to
do grievous bodily harm against a child in the five years prior to the coming into operation of the
relevant chapter in the Children’s Act, in this case 1 April 2010. Such persons are found automatically
to be unsuitable to work with children.34
Persons who are alleged to have committed a sexual offence against a child or person with a mental
disability, must also be included in the National Register for Sex Offenders if the court has made a
finding in respect of the person’s lack of capacity to stand trial or that the person is not criminally
responsible due to mental illness or defect as provided for in sections 77(6) and 78(6) of the Criminal
Procedure Act.35
2.3.1 Procedure for removal from the Sex Offenders Register
Section 51 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act and the
accompanying regulations36
set out the requirements for removal from the Sex Offenders Register.
Table 1 summarises the provisions of section 51.
Table 1
Offence Category Time lapse Removable
Sexual offence against a
child or mentally disabled
person
Imprisonment, periodical
imprisonment37, correctional
supervision and
imprisonment under section
276(1)(i) without the option
of a fine for a period
exceeding 18 months,
whether suspended or not.
Not applicable No
34
Section 120(5) Children’s Act (38 of 2005) 35
Section 50 (1)(a)(ii) Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007) 36
Government Gazette No. 31076, 22 May 2008, Regulation 19. 37
It should be noted that section 285(1) of the Criminal Procedure Act specifies the maximum period for
periodical imprisonment to be 2000 hours, or 83.3 days. It is therefore not possible to impose a sentence of
periodical imprisonment that exceeds 18 months, unless reference is being made here to the total period over
which the term of periodical imprisonment must be served. If so, then the law is not clear on this.
14
Offence Category Time lapse Removable
Two or more convictions of
a sexual offence against a
child or mentally disabled
person
Not applicable No
Imprisonment, periodical
imprisonment, correctional
supervision and
imprisonment under section
276(1)(i) without the option
of a fine for a period of at
least 6 months but not
exceeding 18 months,
whether suspended or not.
10 years after release from
prison or the period of
suspension has lapsed
Yes
Imprisonment, periodical
imprisonment, correctional
supervision and
imprisonment under section
276(1)(i) without the option
of a fine for a period of at
least 6 months or less,
whether suspended or not.
7 years after release from
prison or the period of
suspension has lapsed
Yes
Any lesser sentence or court
order than the above
5 years after release from
prison or the period of
suspension has lapsed
Yes
Court makes finding in
respect of section 77(6)
[capacity to understand
proceedings] or 78(6)
[mental illness] of the CPA
5 years after release from
prison or the period of
suspension has lapsed
Yes
If a person is eligible to apply for removal from the register, he/she must make such an application on
Form 10 in Annexure B of the Regulations to the Criminal Law (Sexual and Related Matters)
Amendment Act. The application must be accompanied by a full set of fingerprints. The form (Form
10) requires, in addition to the biographical details of the applicant, a motivation for the application as
well as a declaration that there are no further pending cases against the applicant. The Registrar may
then, if satisfied, issue a certificate (Form 11) that the person’s name has been removed from the
register. The same form can also be used to issue a certificate that a person’s name has not been
removed from the register. The Registrar may also remove a person’s details from the register if
satisfied that the inclusion of the person on the register was clearly done in error.
15
There are, however, a number of problem areas in relation to the procedure for removal. Firstly, the
Criminal Law (Sexual Offences and Related Matters) Amendment Act introduces yet another
yardstick for expungement, namely the date upon which the offender was “released from prison or the
period of suspension has lapse”. The legislation does not clarify what “release from prison” means
and whether that refers to the date of expiry of sentence or the date that the offender may be released
on parole or placed under community corrections or, presumably, the actual date of actual release if
on a date falling between the other two dates. It is this distinction that seized the Supreme Court of
Appeal in Price v Minister of Correctional Services and the court declared that
“the ‘date of release’ referred to in s 276A(3)(a)(ii) of the Criminal Procedure Act 51 of 1977
means, for the purpose of a prisoner subject to the provisions of the Correctional Services Act 8
of 1959 relating to his or her placement under community corrections, the date on which such
prisoner may be considered for placement on parole or the date upon which the prisoner may be
released upon the expiration of his or her sentence, whichever occurs first.”38
Section 73(6)(a) of the Correctional Services Act stipulates that a prisoner must serve the stipulated
non-parole period or if no such period was stipulated, then half the sentence before being considered
for release. It is then from this date of release, most likely halfway through the imposed sentence that
the time period (five, seven or ten years) as stipulated in section 51 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, commences. It should furthermore be noted that the
decision to release a person serving a sentence of less than 24 months rests not with the Correctional
Supervision and Parole Board, but with the Head of the Correctional Centre.39
Secondly, it is not clear how the legislature established the five, seven and ten year time periods set
out in section 51 and how the risk the individual may pose to society upon release in respect of further
offending was linked to the time lapse periods. Research elsewhere has found that 19% of sex
offenders reoffended after two years, 28% after five years and 36% after ten years.40
The same study
found that sex offenders were also convicted of other violent and non-violent property offences.
Evidently the longer the time period, the greater the chances of re-offending become, but despite
extensive research in this regard, age together with a wide range of other variables rather than time
lapse appear to be a stronger predictor of offending rates.41
38
Price v Minister of Correctional Services Para 18 [2007] SCA 156 (RSA) 39
Section 75(1) Correctional Services Act 111 of 1998 40
Craig L, Browne K, Beech A & Stringer I (2006) Differences in personality and risk characteristics in sex,
violent and general off enders, Criminal Behaviour and Mental Health, Vol 16, pp. 183–194. 41
See in general Muntingh L and Gould C (2010) Towards an understanding of repeat violent offending -
A review of the literature, ISS Paper 213, Pretoria: Institute for Security Studies.
16
Lastly, the Criminal Law (Sexual Offences and Related Matters) Amendment Act predates the Child
Justice Act by some two years42
and even though the Child Justice Act makes provision for a
custodial sentence of up to five years in a child and youth care centre43
, this sentence option is not
covered by the sentences defined in section 51 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act. It therefore follows that a child who is convicted of a sexual offence must
be placed on the register, but can not be removed as a sentence to a child and youth care centre is not
listed. This is a matter requiring redress through legislative amendments to harmonise the two pieces
of legislation.
2.3.2 Procedure for removal from Part B of the National Child Protection Register
Section 128(1) of the Children’s Act provides that a person may apply to have his or her name
removed from Part B of the National Child Protection Register. An application on the ground that the
person has been rehabilitated may only be made after a period of at least five years has lapsed since
the entry was made and after consideration is given to the prescribed criteria.44
Furthermore, the
particulars of a person convicted of more than one offence regarding a child may not be removed from
Part B of the National Child Protection Register. The description here will focus on the application for
removal as it pertains to an application for expungement of a criminal record and thus relates to a
conviction being the reason for inclusion of a person’s name in Part B of the National Child
Protection Register.
An application for removal from the register on the grounds that the person has been rehabilitated
may be made to any court, including a children’s court. Such an application must be accompanied by
proof of the rehabilitation of the person as set out in regulation 45(2) and must include:
• a report from a registered psychologist, psychiatrist or social worker stating that the person
has been rehabilitated and is unlikely to commit another act or offence similar to which has
led to the inclusion of the person’s name in part B of the register;
• an outline of the steps taken by the applicant to rehabilitate him or herself since inclusion in
the register
• an official document from SAPS stating that the applicant has not been convicted of any
offence relating to a child during the time that the applicant’s name was included in the
register
42
The Child Justice Bill was tabled in 2008 and adopted by Parliament in 2009, and came into operation on 1
April 2010. 43
Section 76(2) Child Justice Act 75 of 2008. 44
Children’s Act (38 of 2005) section 128(3)
17
• an affidavit by the applicant that no proceedings in a court or administrative forum are
pending against him or her involving the maltreatment, abuse, deliberate neglect or
degradation of a child.
The Children’s Act introduces even further requirements compared to the other procedures discussed
above in relation to the Criminal Procedure Act and the Criminal Law (Sexual Offences and Related
Matters) Amendment Act. Firstly, while the period to lapse is comparatively short (five years), proof
of rehabilitation and proof of no further pending actions against the applicant, set difficult
requirements to meet. The risk of re-offending is a variable not addressed in any of the other
mechanisms and particularly not in respect of the Sex Offenders Register. Secondly, while the
expungement procedure in respect of section 271B of the Criminal Procedure Act and the Child
Justice Act (discussed below) is an administrative one handled by functionaries of the Department of
Justice and SAPS, an application for removal from Part B of the Child Protection register requires an
application to be made to a court, evidently a more onerous and costly process if legal representation
is used.
2.3.3 Expungement and the registers
A number of comments are warranted in respect of the intersection between the two registers
discussed in the above and the criminal record expungement provisions. In general, it can be said that
the procedures explained are not user-friendly and require a familiarity with legal prescripts and
administrative procedures. A summary diagram of the procedures is attached as Appendix 1. Firstly,
removal from the registers is a pre-requisite for the expungement of a conviction relating to offences
against children and sexual offences. The extent to which the state is able to cross check the registers
for each application under section 271B of the Criminal Procedure Act is not known and this may
result in a significant additional administrative load to ensure that records are not expunged while the
name of the person concerned still appear on either of the registers.
Secondly, the provisions in section 271B of the Criminal Procedure Act sets the most severe sentence
for which an expungement may be applied for as twelve months imprisonment with the option of a
fine not exceeding R20 000.45
The most severe sentence under the Criminal Law (Sexual Offences
and Related Matters) Amendment Act for which an expungement may be applied for is 18 months
imprisonment without the option of a fine.46
This sets a significantly more accommodating ceiling
compared to the twelve months imprisonment with the option of a fine not exceeding R20 000
45
Section 271B(1)(a)(v) 46
Section 51(1)(a)(i)
18
provided for in the section 271B of the Criminal Procedure Act. Whether it was intentional is
unknown, but the consequence is that an offender listed on the Sex Offenders Register who had been
sentenced to 18 months or less direct imprisonment without the option of a fine will be able to have
his or her name removed from the register, but not have the record expunged.
Thirdly, section 271 B uses the date of conviction and the sentence imposed as the two key variables.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act uses the offence, the
sentence and the date of release from prison as the key variables. If all other criteria are met, the
application for expungement cannot commence at the earliest possible date, due to the different
starting points of the two provisions: the date of conviction versus the date of release from prison. A
likely explanation is that it is the behaviour of sex offenders once released that is important and whilst
imprisoned they do not pose a threat to society. This reasoning has validity although it adds to the
complexity of the expungement provisions.
Fourthly, removal from Part B of the National Child Protection Register fortunately does not bring the
sentence imposed into the equation but rather emphasises the behaviour of the person as the key
variable. However, if all requirements are met a person can have his or her name removed from Part
B of the National Child Protection Register after five years after being convicted but must then wait a
further five years to apply for an expungement under section 271B of the Criminal Procedure Act.
In summary, the registers have added to the complexity of the expungement provisions by, firstly,
creating a two-step procedure for expungement of criminal records related to sexual offences and
offences against children. Secondly, the registers have also increased the number of government
departments involved as the Part B of the National Child Protection Register is maintained by the
Director General of Social Development and the Sex Offender Register by the Department of Justice
and Constitutional Development. Despite these complexities the narrow scope of who is eligible for
expungement under section 271B of the Criminal Procedure Act places a severe limitation on any
incentive for offenders to be law abiding citizens with the prospect of having their criminal records
expunged in the future.
2.4 Child Justice Act
The Child Justice Act (75 of 2008) is primarily aimed at dealing with children (under the age of 18
years) coming into conflict with the law, but the Director of Public Prosecutions may, in accordance
with directives issued by the National Director of Public Prosecutions, direct that a matter be dealt
with in accordance with the Child Justice Act if the person was a child at the time of the alleged
19
commission of the offence, or was older than 18 but younger than 21 years when ordered or
summoned to appear at a preliminary enquiry, or arrested.47
The Child Justice Act also provides for the expungement of certain criminal records of persons
convicted under this legislation.48
The intention is clear in that the wrongful actions of children
should not hang like an unpleasant reminder over them for the rest of their lives. The criteria for
expungement of criminal records under the Child Justice Act are, however, fundamentally different
from those used in the Criminal Procedure Act.
Whereas the Criminal Procedure Act defines the eligible categories based on the sentence that was
imposed, the Child Justice Act uses the offence that was committed as per the three schedules
attached to the Act. The offences listed in Schedule 1 are of a less serious nature such as theft
involving less than R2500 and trespassing. Schedule 2 offences are more serious in nature and include
theft with a value in excess of R2500 and housebreaking. Schedule 3 offences include murder, rape
and kidnapping. Offences listed under Schedule 3 are excluded from the expungement provisions and
only offences listed under Schedules 1 and 2 are eligible for expungement.
In the case of convictions for offences listed under Schedule 1 a period of five years must lapse after
which the conviction will ‘fall away’ as a previous conviction and the record must be expunged upon
application from the child, parent, appropriate adult or guardian, unless the child has been convicted
of a ‘similar of more serious offence’ during that period.
In the case of Schedule 2 offences, the period is ten years. The decision on whether a further offence
is similar or more serious than an earlier offence rests with the Minister of Justice and Constitutional
Development. The application for expungement is made to the Director General: Justice and
Constitutional Development who, if satisfied, will issue a certificate of expungement directing that the
conviction and sentence of the child be expunged. The certificate of expungement is issued to the
applicant who must in turn submit this in the prescribed manner to the SAPS Head of Criminal
Records Centre. Upon the written request of the applicant, the SAPS Head of Criminal Records
Centre must confirm in writing that the record had been expunged. The procedure here is thus
identical to the procedure set out for the Criminal Procedure Act and is similarly described in the
regulations to the Child Justice Act.49
The procedure is described in some more detail in the Child
Justice Act Regulations than in the Criminal Procedure Act Regulations, although this does not have a
material impact on the overall application and expungement procedure.
47
Section 4(2) 48
Section 87. The Child Justice Act came into force on 1 April 2010. 49
Regulation 49
20
The Child Justice Act does not only provide for the keeping of records of convictions and their
expungement, but also records of children who have been diverted. The Director General of Social
Development must keep and maintain a register of all children diverted and must ‘expunge’ all such
records upon the child turning 21 years of age, unless the child has been convicted of a further offence
or has failed to comply with the diversion order in question.50
Neither the Child Justice Act nor the
Regulations require an application process to have a diversion record expunged. However, the
Director General for Social Development may “for the purposes of determining whether the criteria
referred to in section 87(6) of the Act have been complied with, obtain information relating thereto
from any person, organ of state or private body”.51
The purpose of keeping a register of diverted cases, especially if there is reference made to their
expungement is not clear, as it is the overall purpose of diversion to avoid the child from having a
criminal record and the potential prejudicial and negative consequences of having such a record.
Section 60(2)(a) sets out the purposes of the diversion register relevant to this discussion52
and relates
to securing the attendance of the child at court by the police53
; the release or detention of the child by
the police54
; the assessment by the probation officer55
; diversion granted by the prosecutor56
;
preliminary inquiry57
, and trial by a child justice court.58
Upon assessing whether to detain a child in a prison awaiting trial, the presiding officer should take
all the relevant information into account and, if it exists, the record of previous diversions, record of
previous convictions and any pending charges against the child.59
When assessing a child, the
probation officer must also take into account the record of previous diversions, record of previous
convictions and any pending charges against the child. If a prosecutor is considering diversion of a
50
Section 87(6) 51
Regulation 52(1) 52
Child Justice act (75 of 2008) Section 60(2)(a)The purpose of the register is to keep a record of particulars
referred to in subsection (1) in respect of children whose matters are diverted from the formal criminal justice
system in terms of this Act—
(a) for access by (i) probation officers when assessing a child in terms of Chapter 5; (ii) police officials when
performing functions in terms of Chapter 3 or 4; or (iii) presiding officers, members of the national prosecuting
authority referred to in section 4 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), or other
court officials, when considering diversion in terms of Chapter 6, at a preliminary inquiry in terms of Chapter 7,
and during proceedings at a child justice court in terms of Chapter 9. 53
Child Justice Act Chapter 3 54
Child Justice Act Chapter 4 55
Child Justice Act Chapter 5 56
Child Justice Act Chapter 6 57
Child Justice Act Chapter 7 58
Child Justice Act Chapter 9 59
Section 30(3)(c)
21
case, similar consideration should be given to the record of previous diversion60
and the preliminary
inquiry should also take account of the record of previous diversion.61
The problem that arises is that the Child Justice Act does not specify or provide guidance on how the
record of previous diversion should be used by the various officials who have access to it. It leaves it
open to interpretation. Since the Child Justice Act does not prescribe how such a record should be
interpreted, it creates the very real possibility that it will be interpreted as if the previously diverted
child poses an increased risk compared to a child who has not previously been diverted and already
had his or her ‘first chance’ and that a more restrictive action or severe sanction is now a logical and
deserved next step.
Moreover, the Act fails to distinguish between a record of a successful diversion where there was
compliance with the diversion order and a record of failure to comply with the diversion order, as
provided for in section 58 of the Act. It appears then that a record of a failed diversion will count as
much or as little as a successful one.
The risk here, as has been found in other jurisdictions, 62
is that a previous diversion may be held
against the child in a subsequent case, even though there had been no conviction. The record of a
previous diversion could therefore have a strong prejudicial effect similar to the effect of a previous
criminal conviction if there is a further alleged offence and the official concerned with that particular
stage in the criminal justice process requests the record of previous diversions.
Perhaps even more worrying about the diversion record is that it remains until the age of 21 years, as
opposed to a conviction for a Schedule 1 offence that can be expunged after five years. In such cases
the diversion record may end up having a longer prejudicial impact as it may still be taken into
consideration up to age 21 years, whereas the Schedule 1 conviction falls away and may be expunged
after five years.
2.5 Overview of the legislative provisions
The amendment to the Criminal Procedure Act created for the first time a mechanism for
expungement of criminal records in addition to the powers of the president to grant pardons. This is
60
Section 41(5) 61
Section 52(1) 62
Muntingh L. (1997) ‘The Development of Diversion Options for Young Offenders’ in Shaw M. & Camerer L.
(eds) Policing the Transformation: Further Issues in South Africa`s Crime Debate, Monograph No 12, Institute
for Security Studies, Pretoria.
22
regarded as a positive development and reflecting the acknowledgment that at least some criminal
convictions should not remain on record forever. However, the scope of section 271B of the Criminal
Procedure Act is extremely narrow and the sentences listed as covering the scope of expungement are,
in all likelihood, only imposed for very minor offences or offences where there were extensive
mitigating circumstances. The most onerous sentence covered by section 271B of the Criminal
Procedure Act is twelve months imprisonment with the option of a fine not exceeding R20 000. It
must be assumed that the courts would use the fine as alternative to imprisonment option when the
offender has the means to pay the fine and/or poses such limited risk to society that their
imprisonment is in fact not an essential requirement to serve the interests of justice. It is regrettably
the case that there are no sentencing statistics available on a national level to quantify the exclusivity
of the section 271B provisions.
The Sex Offender Register and Part B of the National Child Protection Register added an additional
layer to eligibility for expungement but do so with different interests in mind than the provisions of
section 271B of the Criminal Procedure Act. The registers are clearly aimed at protecting society
against certain individuals and thus introduce this purpose to maintaining a record of convictions. In
respect of other offences not covered by these two registers, especially non-violent crimes, the aim
and purpose of keeping an offender’s criminal record for the rest of that person’s life are not well
defined and require further critical examination. What appears to have developed is a vague
understanding that keeping records on people’s criminal convictions may be useful for something, but
that this something is not entirely clear.
The preceding discussion has shown that a series of different yardsticks are employed by the different
legislative provisions. These are: the offence; the date of conviction; the date of release from prison;
and the date of expiry of the sentence. Furthermore, the different legislative provisions use them in
different combinations. For example, the Criminal Procedure Act refers to the date of conviction and
then lists certain sentences, presumably indicative of the seriousness of the offence. The Criminal
Law (Sexual Offences and Related Matters) Amendment Act also lists specified sentences,
overlapping to some extent with the Criminal Procedure Act list, but relate that to the date of release
from prison or expiry of the sentence. The unavoidable conclusion is that the drafters of the different
laws formulated these provisions in isolation from one another, or that there are indeed very divergent
opinions on how criminal records should be managed and what offences should be eligible for
expungement. Ideally there should be uniformity in the yardsticks employed and this should be
underpinned by scientific knowledge about reoffending and the implications of having a criminal
record.
23
3. The practice
3.1 Dept of Justice and Constitutional Development
Since the Criminal Procedure Amendment Act (65 of 2008) came into force the Department of Justice
has had to deal with a considerable number of applications, as shown in Table 2 below. From May
2009 to 2 February 2011 a total of 8687 applications were received of which 6593 were successful, or
76%.63
It is unfortunately the case that the Department is not able to give a further breakdown of these
figures in respect of age at time of offence, the sentence imposed and the offence itself. The total
number of applications nonetheless indicates that there was indeed a need for such a mechanism and
that the average number of applications per month has been climbing steadily.
Table 2
Period Applications Successful Unsuccessful
May to Dec 2009 3212 2954
Jan to Dec 2010 4973 3002
Jan to 2 Feb 2011 502 637
TOTAL 8687 6593 1170
3.2 The private sector and criminal records
As can be expected, the expungement procedure is being used for commercial gain by private
companies, some of which are law firms. A few firms advertising this service on the internet were
approached and the following was established. The Rustenburg-based law firm, Walter Vermaak
Attorneys, charges between R2000 and R3000 per application, depending on the option chosen.64
Another law firm, S. Niselow Attorneys in Johannesburg, charges R7500 for the application process.65
A third company, CSI Africa, which focuses on forensic investigations, also handles expungement
63
Figures supplied to the author by the Department of Justice and Constitutional Development. 64
Walter Vermaak Attorneys describe the two options as follows: OPTION 1-Our total all inclusive fee, payable
in advance, to apply to expunge your record is R2000 on condition that you apply personally for your clearance
certificate. You'll have to go to your nearest police station, let your fingerprints be taken, apply then for your
clearance certificate and follow it up yourself with them. Upon receipt of it, you must send it to us where after
we'll lodge your application to expunge your record. OPTION 2-Our total all inclusive fee, payable in advance,
to apply to for your clearance certificate as well as to apply thereafter to expunge your record is R3000. You'll
only have to furnish us with 2 sets of fingerprints which will be taken at your nearest police station, send it to us,
where after we'll do everything further on your behalf. (Correspondence dated 13 October 2010 on file with
author.) 65
Correspondence dated 22 March 2011 on file with author. http://www.niselowlaw.co.za/
24
applications and charges R2500 per application.66
Nevetec Police Clearance charges R2850 for the
application for expungement of a criminal record.67
Apart from the initial costs involved to apply for the clearance certificate (R59.00), the Act does not
provide for any other fees to be paid to apply for the expungement of a criminal record. Direct cost to
the applicant, if he handles the process himself, are minimal and may involve a few phone calls and
postage. Admittedly the process of having a criminal record expunged is not an easy one (see Figure
1) and may be confusing and intimidating to the lay person. At minimum the applicant has to interact
with three entities: the police upon application for a clearance certificate; the Department of Justice
and Constitutional Development, and the SAPS Criminal Record Centre (on two occasions). It is
therefore not surprising that private companies are offering the service, but the costs involved may
indeed put the expungement of the record beyond the reach of average South Africans. The
commercial exploitation of the expungement procedure was, however, not a consequence considered
by the legislature at the time the amendment was before Parliament and there is consequently no
regulation around this.
Private sector involvement is also not limited to the expungement of criminal records and a number of
companies conduct ‘screening’ of prospective employees which includes verifying if the job applicant
has a criminal record.68
Advice from an industry newsletter sketches an intimidating picture to
employers:
Employers have become increasingly aware of the importance of knowing if an applicant has a
criminal record. Employers have a legal duty to make reasonable inquiries about who they
hire, and to provide a safe workplace. An employer who hires a person with a criminal record
can be found liable for negligent hiring where the hiring decision results in harm, and it could
have been avoided by a simple criminal record check. Checking criminal records demonstrates
Due Diligence and is also an important preventative measure to protect against workplace
violence.69
One example is the company MIE Background Screening; a company owned by the US company
Kroll Background Screening and the South African Ideco Group.70
From the description on MIE’s
website it is clear that there is a close working relationship between the company and SAPS to the
extent that SAPS-compatible and specialised computer hardware and software are now used for
checking criminal records:
66
Correspondence dated 11 April 2011 on file with author. http://www.csinvestigate.co.za/ 67
http://www.nevetecpoliceclearance.co.za/remove.htm Accessed 21 March 2011 68
For example Employers Mutual Protection Service and MIE Background Screening 69
Doing criminal record checks when hiring, BizCommunity, 10 April 2005,
http://www.bizcommunity.com/Article/196/22/6256.html Accessed 21 March 2011. 70
http://www.kroll.co.za/content/fservices/svc_crims.htm Accessed 21 March 2011.
25
A request for a Criminal Record check MUST then be accompanied by a full set of fingerprints.
Importantly, these fingerprints may be in electronic format. This format for fingerprints has
been determined, and can only be forwarded to the SAPS via specific biometric devices and
predetermined transfer mechanisms. Electronic fingerprints must be captured on specific
devices (manufactured by Sagem71
) by authorized and trained operators, who themselves
“connect” using their own fingerprints.72
The problem with the accuracy of electronic versus manual (name and identity number) checking is
highlighted in the 2010 EMPS Annual Screening Survey:
To-date 6200 applicants have been checked doing both a name/ID check and an AFIS
(fingerprint) check. Our research picked up that 893 of the applicants had a criminal record
via AFIS, while only 235 of those people were picked up on the name/ID check, highlighting the
unreliability of name/ID searches. A difference as high as 10% exists, which means that 10 out
of 100 applicants have a criminal record that would not be picked up using name/id, thus
allowing this percentage into the working environment.73
The same report reflects that in total 18% of persons screened had a criminal record. Of this group the
majority of convictions were for theft (24%), ‘Road Traffic Act’ (23%), and assault (21%). The
report also notes, with alarm, the identification of repeat offenders: ‘A staggering 17% of applicants
who have a criminal record, are repeat offenders and have more than 1 conviction. A further 5% have
3 convictions and 3% have 4 convictions.’ In real numbers this amounts to 197 individuals or 3% of
the total number screened; hardly a staggering proportion.
From the above description it is noted that the state freely shares information on people’s criminal
records with third parties (i.e. the private sector) and unless a particular record has been expunged, as
now provided for, a conviction from 20 or more years will show up when a company, such as MIE
Background Screening, submits a query to the SAPS Criminal Record Centre. It is also evident that
the existence of criminal records is being exploited for commercial gain, either through the screening
process or through the expungement application process. It should also be borne in mind that the
police clearance certificate request does not specify particular offences, or a particular time period, for
example convictions for violent offences committed in the past ten years. The request is in fact a
catch-all drag net that does not discriminate between different offences, the age of the offender or how
long ago it happened. How this information is used is ultimately the discretion of the prospective
employer, but a criminal conviction for even a minor offence committed some years ago will in most
instances not count in favour of the job applicant. It remains an unanswered question if prospective
employers make any link between the offence and the particular job function. In some instances it
71
For a description of Sagem, a range of bio-metric security applications, see http://www.acss.co.za/et-06-
Sagem-Biometrics-Access-Control-Client.html Accessed 21 March 2011. 72
http://www.kroll.co.za/content/fservices/svc_crims.htm Accessed 21 March 2011. 73
Employer Mutual protection Service (2011) EMPS Annual Screening Report- 2010.
http://www.emps.co.za/cm_man/Portals/0/annual%20screening%20report%202010.pdf Accessed 21 March
2011.
26
may be obvious, for example the person convicted of fraud and applying for a position as a
bookkeeper. In other instances it may be less than clear cut.
4. Conclusions and recommendations
The Criminal Procedure Amendment Act has created a mechanism for the expungement of criminal
records in certain instances. In respect of apartheid era crimes this was long overdue, but the new
mechanism has now also drawn attention to the broader issue of criminal records and how this is
designed, managed and utilised. The description of the legal framework in the above has shown that
there is no universal standard in South Africa; different statutes use different yardsticks. For example,
the key variable may be the date of conviction, the date when the sentence expires or the date of
release from prison.
On the one hand, presumably for law enforcement purposes the state collects information on and
maintains a vast database on criminal convictions. This information appears to be accessible to third
parties, especially the private sector, and then with limited if any restrictions.74
On the other hand, the
state has a positive obligation not to discriminate and to promote equal treatment for all. 75
The
question then arises whether the current legislation and practice regarding criminal records and their
expungement is in line with the spirit of this positive obligation. Reflecting on section 3676
of the
Correctional Services Act (111 of 1998) Van Zyl Smit concludes that the state has the obligation to
render whatever post-release support realistically can be offered for the offender to lead socially
responsible and crime free life in the future.77
Even if this only applies to former prisoners, the
question can rightly be asked if the current law and practice around criminal records are aligned to
this objective: is the state in fact striking the right balance between promoting social reintegration of
offenders one the one hand, and on the other hand, promoting public safety through the use of
criminal records? If finding employment is affected by discrimination based purely on having a
criminal record, this may result in the violation of other rights (e.g. dignity), the limitation of this right
needs to be measured against the standard set in section 36 of the Constitution, the limitations clause.
It is against this background that a number of recommendations can be made in respect the current
legal framework and practice.
74
Presumably the consent of the person in question is necessary when a police clearance certificate is requested. 75
Section 9 Constitution 76
Section 36. With due regard to the fact that the deprivation of liberty serves the purposes of punishment, the
implementation of a sentence of imprisonment has the objective of enabling the sentenced prisoner to lead a
socially responsible and crime-free life in the future. 77
Van Zyl Smit D (2003) Civil Disabilities of former prisoners in a constitutional democracy: building on the
South African experience, Acta Juridica, p. 236
27
It needs to apply rules universally with minimum exceptions, striking a balance between the
protection of public safety and Constitutional obligations. From this it follows that the provisions
relating to offender registers, as noted above, as well as other legislation dealing with the
expungement of criminal records need to be aligned and harmonised. In the case of the latter reference
is made to the Child Justice Act (an offence based system) and the provisions of the Criminal
Procedure Act (a sentence based system). The Sex Offender Register uses the date of release from
prison whereas the Constitution (in respect of Members of Parliament) refers to the expiration of the
sentence as the key date.
A system of expungement needs to be understandable to lay persons and those who would stand
to benefit from it. The provisions for the expungement of criminal records are complex since
different provisions apply to different cases and in some instances these are connected to the registers
that have their own criteria for removal. Whether officials at court level and police station level would
be able to provide the correct advice and guidance is unknown. For the lay person the wording of
section 271A of the Criminal Procedure Act is by no means accessible.
The possibility of expungement should create a real incentive for a broad range of convicted
offenders to refrain from committing further offences. The expungement of a criminal record
should be an attainable reward achieved through good behaviour over a reasonable time period. It
should also not be so exclusive that it becomes meaningless for the majority or even a large
proportion of offenders. Fundamentally this recommendation speaks to what the state wants to
achieve with the recording of criminal records and their expungement and how this can be utilised to
promote law abiding behaviour on a more general scale as opposed to creating an opportunity for a
select few.
A system of records-expungement must be based on knowledge and informed by evidence.
Developing policy and legislation for the expungement of criminal records should be based on
reliable information describing offending and re-offending patterns. Many persons convicted of a first
criminal offence will never commit further offences, while a small percentage of offenders will
continue to commit crimes for a large part of their adult lives. The former category may indeed have a
committed one or several offences at a young age and will then desist from committing further
offences. For the remainder of their lives they will not pose a threat to society and should not be
punished for the rest of their lives for the crimes committed when they were young. Research from the
UK indicates that offending behaviour builds up from age 10-years to a peak at age 18-years after
28
which it declines sharply to age 24 and then maintain a stable level to age 35 and then declines even
further, as shown in Chart 1.78
Chart 179
While such research is not yet available for South Africa and it is therefore unknown how age and
offending converge as well as what the re-offending patterns are. However, it alludes to the inherent
dangers in using a criminal conviction at an early stage as a predictor of long-term behaviour. It is,
however, universally the case that most offences are committed by young men in their late teens to
early twenties.
The retention of criminal records should be selective and purposeful. There is a small group of
offenders who will continue to pose a risk to society and/or who have committed such heinous crimes
that the expungement of the conviction(s) is not morally justifiable or would pose a substantial risk in
managing re-offending. The question of expungement can also be turned on its head: Why should a
particular offender’s conviction not be expunged? Retaining and disclosing the record of a previous
conviction must serve a defined and specific purpose that is in the interest of public safety. The aim
should be to define these categories of offenders as narrowly as possible with the purpose to protect
public safety, rather than the blanket categorisations that have been the basis for the existing
legislation on the expungement of criminal records. The two offender registers, despite their other
problems, are closer approximation of such a defined purpose as they are specific and their
78
Piquero AR, Farrington DP, and Blumstein A (2007) Key Issues in Criminal Career Research, Cambridge
University Press, London, p. 49. 79
Please note that the chart is an approximation of Figure 4.1 in the cited work as access to the raw data for the
purposes of recreating the graph was not possible. It nonetheless reflects the overall pattern found by the
researchers.
0
0.02
0.04
0.06
0.08
0.1
0.12
0.14
10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40
Prevalence of conviction at different ages
29
application is forward-looking and not merely an extension of the punishment for the sake of
punishment.
Appendix 1
30